D.C. Elections Board vs. Founding Fathers

By Hope Hodge on 6.18.09 | 6:55PM

On Tuesday, the Washington, D.C. Elections Board struck down a referendum proposal on recognizing gay marriage in the district, brought by a coalition of local pastors. The grounds for denying the ballot petition: that a referendum vote on this issue constitutes an act of prejudice, violating the district's 1977 Human Rights Act.

Here's a little taste of the idealism that you'll find inside:

To secure an end in the District of Columbia to discrimination for any reason other than individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business.

I can understand the district's fear of what venerable sources of wisdom in governance John Stuart Mill, Alexis de Tocqueville, and the Federalist's Publius called "tyranny of the majority" -- when the rights and freedoms of a few are steamrolled by the dictates of an unenlightened or oppressive many. Given a not-so-distant past that saw a whole class of people subjugated and mistreated merely on account of their race, it's not hard to at least comprehend the reasoning behind a legislative check on this sort of behavior; a limit, in Mill's words, on "the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own."

But Mill, Tocqueville, and Publius, who cautioned just as strongly against the "tyranny of the magistrate," would be doing barrel rolls in their graves if they caught a spectral wind of these latest proceedings. The decision issued by the Board goes on to explain not only its rationale, but its incredibly political motives:

This legislative initiative is significant for several reasons. First, it unequivocally declares that the District is a jurisdiction that affords full faith and credit to valid same sex marriages. Second, it is consistent with recent efforts by the Council to eradicate impermissible discrimination on the basis of same-sex discrimination by putting same sex couples on a par with heterosexual couples in numerous provisions of District law.

In other words, this decision is not about bypassing bigotry, it's about jumping the gun. Since 2008, DC has had on the books an advanced domestic partnership law, which allows for what are essentially civil unions for same-sex couples, complete with nearly all the legal benefits and privileges awarded to marriages. A bill that would limit marriage proper to one man and one woman was introduced in Congress on May 22 of this year.

Legislatively speaking, it's a fair fight, with strong voices on both sides of the issue. And in most states, the scuffle has been allowed to play out between courts, legislatures, and referenda, and sometimes with surprising results, as with California's Prop 8. So why does allowing the people to decide what makes a marriage suddenly become anathema when the issue hits our nation's capital?

The Election Board's vote may mean a political win, but not without the creation of a political monster. As the Alliance Defense Fund's Brian Raum pointed out, the ruling essentially invalidates the marriage statutes that have existed since the district was formed. And the potential misapplications from here on of the human rights law are legion--ballot initiatives on anything from the age for buying tobacco to educational standards for teachers could run afoul of broadly interpreted discrimination standards.

Meanwhile, marriage advocates have filed an appeal on the ruling in DC Superior Court, asking for an expedited appeals process as the clock ticks down to July 6, when a bill signed by the mayor recognizing out-of-state marriages takes effect.

Something tells me that this match has a few rounds in it yet.

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